Types of Gift in a Will Flashcards
What is a devise ?
gift of land (realty)
what is a legacy/bequest
gift of chattels (personalty)
What are the 5 types of legacy?
1) Specific
2) General
3) Demonstrative
4) Pecuniary
5)Residuary
What is a specific legacy
T specifies particular piece of property he owns e.g. land
common indicator of specific property = use of ‘my’
subject to ademption
What is ademption?
A gift will fail if a specific property is not owned by the testator at the date of death, or has substantially changed with no recourse
What is a general legacy?
A gift to be provided out of the testator’s estate. Commonly money
may also be gift of other property eg shares in a. company
What is a demonstrative legacy?
Testator makes a general gift, but specifies a designated fund out of which the gift is to be provided.
Are demonstrative gifts subject to ademption?
No
What if there are insufficient funds in the designated account?
the executors must resort to the rest of the estate in order for the gift to be made
What is a pecuniary gift ?
a general gift of money unless specified or demonstrative - no specific instruction as to which account the money should be paid from
What is a residuary gift ?
the testator’s remaining estate not already disposed of by way of specific, general or demonstrative gift
When will shares be held to have adeemed?
when they have changed in substance not form
What does it mean for shares to change in substance?
they are no longer in the same company or where company exchanged its debentures with new ones
what does it mean for shares to change in form only
where a company went into liquidation. but was amalgamated with a new company, or changed its name and sub-divided its existing shares
When will ademption NOT occur ?
1) the court interprets a gift as general or demonstrative rather than specific
2)the subject of the gift was disposed of without authority
3) the property has not changed in substance
4) the testator has drafted a gift so as to avoid ademption
What is abatement ?
the order in which assets are applied by the executors toward the payment of the estate’s expenses, debts and liabilities
- General legacies abate before specific legacies
- Demonstrative gifts are not vulnerable to abatement
What does the will speaks from the date of death mean?`
a gift of ‘the contents of my house’ will be construed as a gift of the contents as at the date of the testator’s death
So if a specific gift is sold or destroyed, and the proceeds are traced or recovered through insurance the beneficiary is not entitled to those proceeds
What is the exception to this rule
If a testator owns a leasehold interest when making a will and later acquires the freehold, the rule does not limit the gift to the leasehold.
What is the Simultaneous Death and destruction of property
Where the testator dies and his or her property is destroyed simultaneously. there is a presumption that the property was destroyed before the testator died
What is the effect of a beneficiary dying before a testator
The gift fails and falls into the residuary estate
What happens if the beneficiary who predeceases the testator is the residuary beneficiary
the residue passes under the intestacy rules
What is a class gift and when does it lapse
given to a group of people rather than specific individuals. Will only lapse if all members of the class predecease testator
What is the effect of a gift to ‘Y and Z in equal shares’
Y and Z will take as tenants in common. If Y dies before X, the gift to him will lapse and Z will receive only her own share.
This can be prevented by stating that the gift is meant to be taken in equal shares or by the survivor absolutely
What is the effect of a gift to two or more beneficiaries as joint tenants ?
the gift will lapse only if all the joint tenants predecease the testator, otherwise the surviving joint tenant will take the whole gift (under right of survivorship)
What is the presumption of survivorship in regards to claims in property
- the younger of two people who dies is deemed to have survived the elder the succession purposes (except where will includes a survivorship clause)
What is statutory substitution
where there is a gift to the child or issue and the intended beneficiary dies before the testator and the issue of the intended beneficiary are still alive;
the gift will not lapse but will pass to surviving issue in equal shares but will pass to surviving issue in equal shares.
Section 33 does not apply in the case of gift to anyone other than the testator’s direct descendant
What is the rule in Lawrence v Tierney ?
where a will contains a gift which appears to be absolute
, followed by a direction that it is to be held on trust, the gift is to operate as a trust so long as it is effective but where it is ineffective - it is to revert to an absolute gift, this will take effect to the exclusion of the residuary legatee or next of kin
Presumption as to a Gift of Real Property
devise of real estate to any person without words of limitation is construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will
What is Donation Mortis Cause ?
- `a gift made in contemplation of the death of the donor
What is the doctrine of cy-rpes
allows charitable gifts to be paid to another charity if there is uncertainty regarding the intended charitable beneficiary, or the charity in question no longer exists at the date of the testator’s death
what is the presumption which applies o gifts on person appointed as executor
Any specific or pecuniary legacy made to a person appointed as an executor is intended to be conditional upon that person acting as such
what is the presumption as to effect of gifts to spouses
Where a will gives an absolute gift to a spouse/ civil partner , but the same instrument gives an interest in the property to an issue, there is a rebuttable presumption that the gift to the spouse is absolute notwithstanding the purported gift to the issue
